Criminal Defense Lawyers in San Diego able to help with any Assault and Battery cases
If you have been charged with committing assault and battery, call San Diego assault and battery attorney Alex Ozols for a free consultation. Ozols Law Firm will aggressively represent your rights.
Hire An Experienced Assault and Battery Lawyer
In San Diego, assault and battery is a common charge that is often misunderstood. Assault refers to putting someone in danger of unwanted physical contact, while battery is the actual hitting or physical contact. In other words, you can be charged with one and not the other, though they are typically charged together. Both assault and battery are prosecuted aggressively in San Diego County and you want to make sure you have a strong legal team defending you.
What is Battery?
In San Diego, a battery (California Penal Code 242) is the willful and unlawful touching of another in a harmful or offensive manner. One cannot be convicted if the touching was done in self-defense, the defense of another, or if consent was given. In the state of California and especially in San Diego, the district attorney will charge someone who touched someone else in an offensive manner and all they need are the statements from the alleged victim.
What is Assault?
Assault in the state of California, Penal Code 240, requires that one unlawfully attempts and has the present ability to commit a violent injury to another person. Unlike a battery, an assault does not have to involve any contact. It can either be seen as an attempted battery or just as a lesser included offense of a battery. People will often say when someone touches them or spits on them “that’s an assault.” They say this because it is a common term used in our society but an assault can be committed without any contact at all.
Willfully Touched Another
The term willful essentially means that it was done on purpose or done with intent. If a person is walking and trips and hits another as they are falling then this is not a battery. In a more extreme example, if one was sleepwalking and they hit another individual this would not be a battery because while they were sleepwalking there is not way they could have created the requisite willful intent. The touching that occurs can be done directly or indirectly as to touch something attached to the person. For example, if John is talking to Bob and they get in a small argument, lets say John takes a hat off of Bob’s head. Now that is a battery. If Bob felt that that action was offensive then he can call the police and John will likely be charged with a battery. In most counties this type of thing would not move forward but in the county of San Diego they literally will charge someone with anything that they believe can be construed as a crime by the plain meaning of the legislature. Other items that can be attached to the body include a cane, suitcase, a plate or anything that is touching the body. Even if one is on a horse and the horse is touched to disturb another that can be considered as a battery as well.
Harmful or Offensive Touching
Unfortunately the harmful of offensive touching is not an objective belief but instead a subjective belief. That means that all that matters is what the person being touched thought about the event. So if Jane and Bridget are having and argument and Jane puts her arm on Bridget’s shoulder, and if Bridget thought that this was offensive contact, then that is considered a battery.
Present Ability – Assault and Battery
The concept of present ability is easily misunderstood and is best explained by examples. If John and Bob, who live 100 miles apart, are arguing on the phone, and John says I am going to shoot you right now, that is not an assault. The reason is because John did not have the present ability to carry out that crime. No matter how many times John shot his gun in the air or at his phone there is no way it would hit Bob. Another example would be if John and Bob are 100 feet apart and Bob has a big rock that he says he is going to throw at John and actually attempts to throw it. Bob is not a superhero and he cannot throw the rock 100 feet, so no matter what he said and the actions he took, he did not have the present ability to commit this crime.
Defenses to Assault and Battery
Self Defense is a common and strong defense to battery. The theory behind self defense in battery is that if one feels threatened or are in danger then they can defend themselves or defend another who they believe is in danger. In battery cases this happens a lot and is commonly used as a defense at trial. It is not often that one just goes and commits a violent crime, it is usually some sort of mutual combat or a self-defense situation.
Consent Express and Implied
Express consent is the direct clear consent that one gives to another that they can touch them. It is one person actually telling another that it is ok to touch them in certain situations or for a limited period of time. If there has been express consent then there obviously has been no battery that took place. Implied consent is much more common and a lot harder to understand. Everyone in a society has some type of implied consent. For example when one rides the trolley in San Diego on the way to a football game it is impliedly consented that there will be bumping and incidental touching of people very close to you. This is not a battery in any sense of the word, because in this scenario before one went on the trolley they impliedly consented to the touching. Another example is in professional sports. In hockey, people are allowed to hit each other and they are even allowed to fight as long as it is consensual. Before two people fight, they will look at each other, they may throw a glove off but both sides know they are going to fight. However, there can a battery committed in professional sports as well. Years ago there was a player Marty Mcsorely that took his stick and hit the head of Donald Brashear. This was deemed beyond the scope of the implied consent in the game. No one that agrees to play hockey is consenting to get a stick to the head, therefore this was a battery that was committed. This eventually led to the suspension of Mcsorely, criminal charges were filed, and he retired.
Call An Experienced San Diego Assault and Battery Lawyer Today
There is a lot to these cases and it takes a lot of knowledge and skill to convince a jury or the prosecutor that the defendant is innocent. These cases can be easily won or reduced if they are handled properly. Call San Diego criminal defense attorney Alex Ozols today to discuss your best legal strategy.